Hossain Maqbul v. Torture Claims Appeal Board
Read the full judgment text of HCAL 1567/2024 on BabelCite. This High Court CFI judgment was delivered on 2 December 2025.
1. By way of Form 86 dated and filed on 11 September 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 20 March 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
Cites 7 cases
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HCAL 1567/2024 [2025] HKCFI 5866 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1567 OF 2024
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 11 September 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 20 March 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 9 November 2023 and confirmed the same. Amendments 3.In Form 86, the applicant named “WONG Chi-wai Member of the Torture Claims Appeal Board” as the putative respondent and the Board as the putative interested party. 4.In fact, Mr Wong was determining the applicant’s appeal/petition in his capacity as a member of the Board, and the Board should be named as the putative respondent. 5.Moreover, only the Director should be named as the putative interested party. 6.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”. Late application 7.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. 8.However, the applicant filed his Form 86 on 11 September 2024, which was more than 5 months after the Board’s Decision (made on 20 March 2024). The applicant was hence late for more than 2 months in making the Leave Application. 9.This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:
10.The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. 11.The delay of more than 2 months is not insubstantial. Moreover, there is no merits of the intended judicial review as discussed below. 12.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone. 13.However, for the sake of completeness, this court will still examine the merits of the Leave Application. The applicant’s case 14.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 15.In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would face risk of serious harm as he owed a moneylender, who was a supporter of the Trinamool Congress (“TMC”), a debt which he could not repay. Withdrawal of the Leave Application and removal of the applicant 16.By his affirmation dated 17 July 2025, the applicant applied to this court to withdraw the Leave Application as he did not want to continue with the judicial review and he wanted to go back to his country India. However, the applicant did not state that it was safe for him to return to his home country. 17.Before the Leave Application and the applicant’s withdrawal application was dealt with, the Director informed this court on 2 October 2025 that the applicant was removed from Hong Kong during the period from 22 September 2025 to 28 September 2025. 18.There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition. With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application. 19.However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-
20.Thus, it is not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to deal with the Leave Application. Grounds for judicial review 21.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 22.The applicant annexed a document with the title “Grounds on which Relief is Sought” to his supporting affirmation dated 11 September 2024. The contents of the document were all very general and were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below. Discussion 23.First of all, Ground (4) in the applicant’s document was only directed at the Director. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Thus, it is not necessary for this court to deal with this ground. This court will consider only those grounds directed at the Board in respect of the Board’s Decision. 24.Grounds (2) and (5) are not grounds for judicial review. The applicant stated in Ground (2) that he could be used as an example of such cases of seeking a stay in Hong Kong, and that if the Hong Kong Government allowed him to stay, it would be not less than saving a life. This is completely irrelevant in a judicial review. Ground (5) was just asking this court to grant leave to have the Board’s Decision judicially reviewed. It is not a ground at all. Thus, only Grounds (1) and (3) are relevant to the Leave Application. 25.The applicant alleged in Ground (1) that the adjudicator of the Board reached the Board’s Decision wrongly and the Board’s Decision was not reasonable and fair. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in this ground either. 26.In any event, the Board did assess the applicant’s risk of right to life, ie BOR 2 Risk[1], but did not find any circumstances that he was at risk of arbitrary deprivation of life if he was returned to India. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in a judicial review. 27.The applicant also mentioned in Ground (1) that the adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal. This ground is totally unfounded. The applicant submitted his Non-refoulement Claim Form (“NCF”) on 21 September 2023. The hearing of his appeal/petition was held on 22 February 2024. This means that even if the applicant only started to arrange his evidence after he submitted his NCF, he still had 5 whole months to collect and submit any evidence in support of his claim. Moreover, if he did have any further evidence to submit, he could have asked the Board for time to do so, but he did not. 28.The remaining ground, ie Ground (3), only contained general assertion that it was a clean case of unfair attitude shown by the adjudicator, and that the corruption and incompetency of the administration of his country was still a very serious problem. The applicant did not specify how the adjudicator was unfair in reaching his decision. 29.As held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. Thus, none of the aforesaid grounds could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case. 30.It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision. 31.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration, [2018] HKCA 524). 32.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review. 33.In assessing the applicant’s appeal/petition, the Board arranged an oral hearing on 22 February 2024 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person. 34.As can be seen from the Board’s Decision, the Board had given detailed reasons as to why it concluded that the applicant’s account was not credible and thus rejected his account as untruthful. The Board found that there was no support for the material assertions made by the applicant. The core aspects of his claims namely (1) that he operated the business; (2) that he owed the lender the debt; (3) that the lender threatened him and intended to kill him; and (4) that the lender had extensive network and could locate him wherever he moved in India, were all unsupported by evidence. The applicant’s oral evidence regarding all the said aspects were vague, general and unsubstantiated. 35.The Board found no reliable evidence that the applicant sustained pain or suffering of certain severity or gravity. According to his oral evidence, the lender only verbally threatened him when he was in India, and verbally threatened his family when he was in Hong Kong. The applicant and his family did not sustain any injuries at all. Further, the Board found that even if the applicant might be ill-treated upon his return to India, any ill-treatment would not be due to a Convention reason. The cause of any such ill-treatment arose solely from a personal financial dispute between the applicant and the lender. 36.The Board found from extensive country of origin information (“COI”) that even assuming that the lender was associated with TMC, which was a major regional political party, that did not mean that every wrongdoing by a TMC member had the sanction of the local government or represented the official stance taken by the local government. The threats by the lender against the applicant, even if substantiated, were acts of private nature and did not fall within any purpose listed in the definition of torture under section 37U of the Immigration Ordinance. 37.Further, the Board found that reasonably sufficient state protection was available to the applicant in India. 38.The Board noted that the question of internal relocation did not arise based on its findings and conclusions as summarized above. Nevertheless, if it was necessary to consider the issue of internal relocation, the Board considered that if the applicant relocated to other states where TMC was not the ruling party or was less influential, the level of risk of harm would be lowered or even negated. It was reasonable and not unduly harsh for the applicant, being an able-bodied male with junior secondary education attainment and substantial work experience, to relocate and work anywhere within India, especially Mumbai and New Delhi. 39.With the findings as summarised above, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on all applicable grounds under the USM. 40.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 41.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 42.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused. Conclusion 43.For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed for being made out of time and also for lack of merits. Dated the 2nd day of December 2025
Where leave to apply has been granted, applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the respondent’s evidence
Form CALL-1 [1] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment